Mental Health Act 1983 Overview

This overview page should be useful for trainee solicitors and paralegals in obtaining a basic knowledge of the Act. Some of the minutiae are glossed over in this overview, for simplicity’s sake: see the main articles for further details. This article takes account of the changes made to the Mental Health Act 1983 by the Mental Health Act 2007 which come into force on 3/11/08.

Definitions

RC – Responsible Clinician – the person in charge of the patient’s treatment. This is usually a consultant psychiatrist but the RC need not be a doctor.

MHT - Mental Health Tribunal. This is the court, held within the hospital grounds, which considers whether the legal criteria for detention are still met, and which discharge if they are not.

HMH – Hospital Managers’ Hearing. This is an internal body with the power (but not so often the inclination) to discharge patients from section.

NR – Nearest relative. This person is defined by the MHA, using a list and various rules. This is not the same as a “next of kin”. The patient can now apply to court to have the nearest relative displaced if he is unsuitable.

Forensic psychiatry/psychiatrist – relates to patients with a criminal (forensic) history

Types of detention

Patients can be detained under civil sections (by AMHPs and doctors) or under criminal sections (by the courts or after transfer from prison). Criminal sections can be sub-divided into restricted and unrestricted sections.

The following are the commonest sections:

Civil (all unrestricted): sections 2 and 3

Criminal, unrestricted: section 37

Criminal, restricted: section 37/41, section 47/49

In-patients not detained under the MHA are called “informal” patients; they are staying in hospital “informally”.

Section 2

This is a civil admission for assessment (or assessment followed by treatment) and lasts for a maximum of 28 days. It cannot be renewed, so will lapse at the end of the period; however, the patient can at any time be placed under section 3 instead. The patient can be discharged by the following routes:

The RC can discharge the patient at any time.

The patient can apply to the MHT during the first 14 days of detention (and can do this by fax or email). The hearing must be held within 7 days. The Tribunal will discharge if the “section 2” criteria in s72 are not met.

The patient can also apply for a HMH, at any time. It depends on the efficiency/policy of the hospital whether this takes place before the section ends.

The patient’s NR can request the patient’s discharge (see below) which leads to considerations of dangerousness rather than the standard criteria.

Section 3

This is a civil admission for treatment. The initial duration is for a maximum of 6 months. It can be renewed for a further period of 6 months; after that, for further periods of 12 months. At any time the patient can be discharged by the following routes:

RC, as for s2

The patient can apply to the MHT at any time. The MHT’s target is to hold the hearing within 5 weeks. It usually takes 5-8 weeks. The Tribunal will discharge if the criteria in s72 are not met.

HMH, as for s2

NR, as for s2, with one exception (see below).

Section 37

This is a court order imposed instead of a prison sentence, if the offender is sufficiently mentally unwell at the time of sentencing to require hospitalisation. It has the same duration as a section 3, and in many ways operates exactly the same way. One difference is the routes to discharge:

RC, as for s2 and s3.

MHT, as for s3 (but no application during first six months).

HMH, as for s3

NR. Note that this is entirely different. The nearest relative discharge procedure does not operate for criminal sections; however, for s37 the nearest relative can apply to the MHT periodically.

Section 37/41

This is a court order, which can only be made by the Crown Court, which imposes a s37 hospital order together with a s41 restriction order. The restriction order is imposed to protect the public from serious harm. The restrictions affect leave of absence, transfer between hospitals, and discharge, all of which require Ministry of Justice permission. There is no NR. The following are the routes to discharge:

MHT, as for s3, except that no application can be made within the first 6-month period. The MHT aim to hold the hearing within 14 weeks; it usually takes 4-5 months. The criteria in s73 apply.

The Ministry of Justice can discharge at any time. This is relatively rare, but would usually happen at the request of the RC.

Section 47

This is called a transfer direction, and is used by the Ministry of Justice to transfer a serving prisoner to hospital. It operates just like s37 so is often called a “notional section 37”. The patient cannot be returned to prison unless he breaches his licence conditions. The following are the routes to discharge:

RC, at any time.

MHT. Note that an application can be made during the first six months, unlike with s37 (as there was no judicial process in the decision to transfer).

HMH, as above.

NR, as for s37 (i.e. application to MHT only).

Section 47/49

This is a transfer direction under s47 together with a restriction direction under s49. The restrictions are the same as those in s41. The prisoner can be transferred back to prison at any time, on medical advice or the advice of the MHT. In theory these patients can be discharged directly into the community, but in practice (except for a minority called “technical lifers”) they are returned to prison when the MHA is not necessary. These are the routes to discharge:

MHRT. Eligibility is as for s47. The MHRT make a s74 notification which is invariably followed by the Ministry of Justice.

Ministry of Justice.

Types of discharge

Restricted patients

Restricted hospital order patients can be “conditionally discharged” or “absolutely discharged”. From hospital, they are usually conditionally discharged; they can apply for an absolute discharge later. A conditional discharge carries with it conditions (e.g residence, treatment, supervision) and the risk of being recalled to hospital by the Ministry of Justice. Only the conditional discharge can be deferred – a “deferred conditional discharge” – this is not to a specified future date, but until the Tribunal are satisfied that the conditions can be met.

Restricted transfer direction patients either (a) become unrestricted patients on their release date or (b) are discharged via the Parole Board if eligible. See s74.

Unrestricted patients

Civil, and unrestricted criminal, patients are either discharged completely (just called “discharged”) or not; however, the patient can be made subject to a Community Treatment Order (also called Supervised Community Treatment). The ordinary discharge can be deferred by the MHT (or HMH) until a specified future date. The Tribunal can recommend a CTO.

Nearest relative discharge procedure

The nearest relative can request the discharge of a s2 or s3 patient. This request is made directly to the hospital, rather than involving the MHT. It can be barred by the RC, but only on grounds of dangerousness. If barred, the case will be considered by a HMH, and can be considered by the MHT in s3 cases. As it introduces a stricter test to justify detention, the correct nearest relative should always be identified and, if practicable, canvassed for his views on discharge.

Eligibility to appeal against section

The patient can apply to for a HMH at any time, but if there has recently been a review, or will be one shortly, there is no guarantee that a hearing will be held.

The rules for applying to the MHT vary:

for s2, the application can only be made during the first 14 days, unless the Tribunal office is closed on the 14th day, in which case the deadline is extended until the next business day (R (Modaresi) v SSH [2011] EWCA Civ 1359);

for s3, s47 and s47/41, an application can be made in the first six months, one in the next six months, and one in each 12-month period thereafter;

for s37 and s37/41 patients it is the same except that no application can be made in the first six months.

Detention criteria

Which criteria apply

In preparing for the Tribunal, it is important to bear in mind the relevant detention criteria.

For s2 cases these are contained in s72(1)(a). For s3 and s37 cases the criteria are contained in s72(1)(b). Both these sets of criteria require detention to be appropriate/warranted (in terms of “nature” or “degree”) and necessary/justified (in terms of the patient’s “health or safety”, or the “protection of other persons”).

The s3 and s37 criteria also require that "appropriate medical treatment is available".

For s3 cases where the NR has applied, the “dangerousness” criterion in s72(1)(b)(iii) will apply also.

For s37/41 patients the standard criteria in s72(1)(b) apply, but also the criterion in s73(1) is relevant to whether a conditional or absolute discharge is appropriate. The same considerations apply to s47/49, although the effects on the patient are different, for which see s74.

For patients who have already been conditionally discharged, there are no specific criteria: see [[s75].

Note that HMHs do not have statutory criteria which they must consider. They have an unfettered discretion, but must be reasonable in their decision and therefore do ask similar questions. See the Code of Practice for details.

Meaning of the criteria

(i) “Degree” refers to the severity of the condition at the time of the hearing. “Nature” involves a longer-term view of the condition: it can involve a consideration of whether the patient, if discharged, would be likely to relapse in the near future. For “nature” you can consider issues such as insight into the need for treatment in the future. The Tribunal only need to be satisfied of nature OR degree.

(ii) The second limb (“health”, “safety”, “protection of other persons”) is self-explanatory. Any of the three is sufficient. Note that the Tribunal need to be satisfied of limbs (i) AND (ii).

(iii) Where it applies, the dangerousness criterion is stricter than the other criteria; if the Tribunal are not satisfied of dangerousness then they must discharge.

Consent to treatment

The consent to treatment provisions can be found in Parts 4 and 4A.

Some rare treatments require consent AND the agreement of other professionals including a second opinion appointed doctor (SOAD). This includes any surgical operation for destroying brain tissue or for destroying the functioning of brain tissue (s57).

Other common treatments require the patient’s consent OR the agreement of a SOAD. This includes medication after the first three months of its first administration. (During the first three months neither consent nor SOAD agreement is necessary.) (s58)

Separate safeguards exist for the administration of electro-convulsive therapy (s58A) and for the treatment of patients under Supervised Community Treatment (s64A ff).

If a patient is being treated with his consent then that would be a relevant factor to raise at a Tribunal hearing.

Aftercare

All patients subject to the long-term sections (s3, s37, s37/41, s45A, s47, s47/49) are entitled to be provided with appropriate “aftercare”, at no charge, when they leave hospital: see s117. The aftercare can, in appropriate cases, include specialist accommodation.